Canada was a different place before Trudeaumania swept the nation, and the man we know as Ivan Rand, founding Dean of this law school and former Justice of the Supreme Court of Canada, was a product of his times. It would be easy to dismiss Dean Rand as an intolerant bigot, but as William Kaplan explained to an audience at Western Law on Nov. 11, [2009,] Rand was complicated character.

“Canadian judicial biography has been, with a few exceptions, mostly uncritical and largely celebratory, written by unabashed admirers,” Kaplan writes in his new book, Canadian Maverick – The Life and Times of Ivan C. Rand. “To my great surprise, this book turned out to be different.”

Ivan Rand was born and raised in the Maritimes and graduated from Harvard Law in 1912. It was his exposure to the American Bill of Rights that, according to Kaplan, differentiated Rand from other Canadian lawyers. And it’s Justice Rand’s decisions as a Justice of the Supreme Court that make his legal legacy so difficult to reconcile with his private views, which have been largely hidden until now.

By 1951, the court in Noble v. Alley assessed a restrictive covenant against selling property in the Grand Bend area to Jews, blacks, or those with “coloured race or blood.” It was Justice Rand who interrupted oral submissions by the respondent saying,“If Albert Einstein and Arthur Rubinstein purchased cottages there, the property values would increase, and the association should be honoured to have them as neighbours.”

Despite his position on restrictive covenants in this case, he was a member of two restrictiveclubs that excluded Jews. He defended the right of Communists to hold elected positions, and famously opposed the internment of Japanese citizens, all the while refusing to meet his sister’s Acadian husband for 30 years because of his background.

“It’s this hypocrisy – because he did know better – that ultimately leads me to conclude: first-rate mind, third rate temperament,” said Kaplan, noting that the most influential judges are rarely collegial consensus builders. “Not such a bad combination.”

What, if anything, changed during his lifetime?

Kaplan suggests that Rand’s exposure to Jews in the Palestine Mandate may have led him to develop a more favourable impression of Jews. Rand was impressed by the largely secular, often highly educated and industrious, and was sometimes even disdainful of the religious establishment of the Holy Land. He believed that rational law could resolve all human conflict, and was a social engineer at heart.

Robert Mackay, one of Rand’s colleagues at Western who would eventually succeed him as Dean, recalls Rand’s rants against Jews and people with ethnic names that ended with a vowel: “Rand would declare he had enough of them.”

Yet he continued to donate to Hebrew University in Jerusalem for the rest of his life. A forest in Israel was named after him, and he would tour the country receiving awards.

Rand believed that ethics could not be taught – either you had them or you didn’t. Western is now known as a pioneer in legal ethics education.

The Ivan Rand window in the Moot Court Room looms menacingly above all those who dare try their hand at advocacy. Rand himself believed that mock trials courts were entertaining, but not educational. He preferred his old 1909 Harvard law texts for the students.

Rand felt that women were good as solicitors but did not have the fortitude for criminal law, a notion that would not bode well for our classes in which women outnumber men , the legal aid clinic, or our struggling criminal law program.

Dean Rand defied utilitarian economics by taking surplus budgets and returning them to the university, much to the chagrin of his staff. He abandoned the administration of the law school only months after its opening to attend to a coal crisis in Cape Breton.

Yet the students loved him.

The Rand formula, where workers pay union dues irrespective of membership, is still one of the hallmark characteristics of Canadian labour law. One of Rand’s recommendations (which was never adopted) was that unions be recognized as legal entities that could sue and be sued [directly, and not through agents]. Another was abolishing picketing altogether.

Overall, Kaplan describes Rand’s own hand at labour relations as nothing less than “disastrous,” with nearly every stakeholder and political party expressing strong criticism. “Reforming labour law,” Kaplan said, “is best done incrementally.”

As our own Dean Holloway acknowledges, “it’s difficult to write fairly about Ivan Rand… What emerges is a picture of a principled man, who thought deeply about the best way to enhance the standards of this profession.”

Kaplan suggests that what makes Rand impressive is his ability to draw bright lines between his public and private life, especially when on the Court. And for a man whose vision in many ways may have been ahead of his time, perhaps that is the most we can ask for.

At common law, a trade union is traditionally considered to be a voluntary unincorporated association, and therefore not a legal entity. It is deemed to be held together merely by a web of implied bipartite contracts between each member and every other member, and these contracts are deemed to incorporate the terms set out in the union’s constitution. To avoid making unions and other unincorporated association legally liable for the actions of members over whom they might have little or no control, the common law has long taken the position that such associations cannot be sued (or sue) in their own names unless a statute says they can. Courts have often sought to circumvent this obstacle where a union is being sued for taking illegal industrial action.

The Supreme Court addressed this issue in Therien, where the court ruled that the union was a legal entity and it committed an actionable wrong.

However, this did not entirely conclude the issue.

A number of provinces enacted various statutes with varying liability for the purposes of labour relations, such as s. 25(1) of the Alberta Labour Relations Code,

Capacity of trade union
25(1) For the purposes of this Act, a trade union is capable of
(a) prosecuting and being prosecuted, and
b) suing and being sued.
(2) A trade union and its acts are not unlawful by reason only that one or more of its objects or purposes are in restraint of trade.
[emphasis added]

Trade union, party to action
(2)A trade union shall not be made a party to any action in any court unless it may be so made a party irrespective of this Act or of the Labour Relations Act.
[emphasis added]

In light of this provision in Ontario a statutory exception to Therien existed, though it was possible to bring a representative action against officers, which were usually restricted to the rare situations where a union had a trust fund.

14. If there were nothing more than the collective agreement between bargaining agent and employer, the courts might still have applied the common law to its enforcement at the suit of the bargaining agent or the employer. The collective agreement embodies a holding out, a reliance, a consent and undertaking to perform, mutual consideration passing between the parties, and other elements of contract which would expose the parties to enforcement in the traditional courts. There would be, of course, a basic difficulty as to the status of the absent third party, the employee, and perhaps the absence of an identifiable benefit in the bargaining agent. All this is overcome by the statute, and the question whether worthwhile enforcement could be realized at common law is, therefore, of theoretical interest only. The missing elements are the status of the members of the bargaining unit and the appropriate forum. The legislature created the status of the parties in a process founded upon a solution to labour relations in a wholly new and statutory framework at the centre of which stands a new forum, the contract arbitration tribunal. Furthermore, the structure embodies a new form of triangular contract with but two signatories, a statutory solution to the disability of the common law in the field of third party rights. These are but some of the components in the all‑embracing legislative program for the establishment and furtherance of labour relations in the interest of the community at large as well as in the interests of the parties to those labour relations.

15. … The problem raised by attempts to escape the contract tribunal so as to seek enforcement in the courts of rights arising under a collective agreement negotiated within the framework of a collective bargaining regime, solely on the grounds that the agreement does not explicitly address the jurisdictional question, is an equally profound difficulty.
…

19. From the above survey of the cases, a general consensus is evident. The courts have no jurisdiction to consider claims arising out of rights created by a collective agreement. Nor can the courts properly decide questions which might have arisen under the common law of master and servant in the absence of a collective bargaining regime if the collective agreement by which the parties to the action are bound makes provision for the matters in issue, whether or not it explicitly provides a procedure and forum for enforcement. There is, therefore, little practical scope left to the second general exception identified above. As to the first exception, that is, that the court may enforce the terms of a collective agreement where its meaning is not disputed, this Court decided in Brunet, supra, and Shell Canada Ltd. v. United Oil Workers of Canada, supra, that there is no difference in principle between a dispute over the “application” of a collective agreement and one relating to its “violation”. The jurisdiction of the courts ought not, therefore, to depend on whether the parties dispute the meaning or application of the terms of a collective agreement. It is accordingly not necessarily determinative of the question of the courts’ jurisdiction that in this appeal, the strike apparently amounted to a breach of a clear term of the collective agreement. There is also an apparent breach of the statute, a consideration to be examined later in these reasons.

20. What is left is an attitude of judicial deference to the arbitration process. This deference is present whether the board in question is a ‘statutory’ or a private tribunal (on the distinction in the labour relations context, see Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, [1982] 2 S.C.R. 888, Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663, [1962] S.C.R. 318, affirming (1961), 29 D.L.R. (2d) 76, Re International Nickel Co. of Canada and Rivando, [1956] O.R. 379 (C.A.)) It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration, when adopted by the parties as was done here in the collective agreement, is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement.

There can be no doubt that unions have the legal status to sue and to be sued in civil matters. They can and do present and defend cases before the courts. They make full use of the courts and the remedies they provide. If unions avail themselves of court facilities, they must be subject to the court’s rules and restraints placed on the conduct of all litigants. It follows that they are subject to prosecution for the common law offence of criminal contempt. There can be no question that unions fall within the scope of the term “societies” in the Criminal Code‘s definition of person and they must be equally liable for prosecution for a common law crime.

The general consensus among practitioners appears to be that although s. 3(2) still stands it is generally dead law.

In reality the suggestions made by The Rand Royal Commissionfor the legislature to create legal status for the union by statute were never directly adopted in this manner, but rather evolved to a similar point over time for the purposes of labour relations through a mix of statute and case law.